The Higher Morality Of Power

May 02, 1986

Skepticism about the unchecked use of government power used to be one of the main tenets of the conservative faith. But judging from a letter sent by Atty. Gen. Edwin Meese`s Commission on Pornography to major convenience and pharmacy chains as well as other businesses, the Reagan administration does not believe this principle applies to its moral crusades.

The commission`s letter warned the retail chains that they have been identified as ``involved in the sale or distribution of pornography`` because they stock magazines the commission deems unacceptable, including Playboy and Penthouse.

This loaded message is a gross abuse of government power. It ought to be condemned, whatever you may think of the publications it attacks.

There are laws governing what kind of sexually explicit material may be published and sold. Obscenity statutes must meet the Supreme Court`s standards in order not to run afoul of the Constitution, but they do forbid the sale of certain kinds of publications. Mr. Meese`s Justice Department and all the various state law enforcement authorities can bring cases in court to apply them through the ordinary processes of the law.

But instead, the Meese commission has circumvented these normal procedures, which are meant to restrain the awesome power of law enforcement in order to prevent abusive conduct on the part of government officials. The commission has decided on its own to accuse a group of businesses of peddling porn and dare them not to stop. It is stunning in its arrogance, and it borders on a kind of official blackmail.

Forget for a moment about the impact of such a tactic on free expression. Even if the target were not a form of speech, the tactic would reek of abusiveness. Imagine if some government commission decided to send out letters in loaded language to retailers, accusing them of engaging in some other form of conduct that it believed was immoral, even though it had not been determined to be illegal. Say it decided that certain perfumes and after-shave were unduly provocative or that alcohol was not the kind of thing decent people bought and sold.

Would an advisory commission, without the authority to bring criminal or civil charges, be justified in issuing this kind of warning to retailers, just because its members had decided what they think is good and bad for the public? Of course not. The judgment about what this country forbids is supposed to be made by the legislature, not some rogue commission bent on scourging society of sin.

The commission might think that it can get away with it this time simply because it is taking out after the likes of Playboy and Penthouse. It might assume that decent, ordinary folks will hesitate to complain because they might not like those publications much themselves. But this is not a matter of taste. It is a basic matter of legal process and governmental self-restraint. If the commission wants to propose a new law to govern sexually explicit material, then let it do so. Congress and the courts will review the suggestion in the ordinary course. If Mr. Meese wants to bring a prosecution against those who publish and sell these magazines, then he ought to do so and try to convince a skeptical judiciary that the material is obscene.

But somebody ought to take Mr. Meese and the members of the commission aside and give them a little instruction on a kind of public morality they have apparently forgotten about in the enthusiasm of their crusade: the fundamental morality of power and the law.